The High Court of the Federal Capital Territory, Jabi, Abuja, on Wednesday, discharged and acquitted two defendants charged with forgery and document falsification in respect of a N170million contract fraud.
The defendants, Princess Kama, and Onny Igbokwe, were arraigned by the Economic and Financial Crimes Commission (EFCC) before Danlami Senchi, the trial judge, on October 24, 2018.
The charges followed the petition by an Ibadan, Oyo State-based, Information Technology retail firm, Citadel Oracle Concept Limited, and its Managing Director, Benjamin Joseph, accusing the defendants and their allies of hijacking the Federal Inland Revenue Service (FIRS) contract from him in 2012.
Mr Joseph alleged that the defendants and other members of a syndicate forged his company’s board resolution with which they, without his knowledge, opened an Access Bank account into which FIRS paid the N70.3million proceeds of the contract.
Ms Kama and Mr Igbokwe were charged with four counts of conspiracy, making a false board resolution of Citadel Oracle Concept Ltd dated December 14, 2012, “fraudulently or dishonestly” using the board resolution as genuine, forgery of “a document” and using “a forged document” as genuine.
The prosecution led by Jude Obozua called four witnesses to prove their case while the defence called Ms Kama and another witness.
Delivering judgment in the suit on Wednesday, Mr Senchi held that the prosecution failed to prove its case beyond reasonable doubt.
The judge, in dismissing the case, noted that he observed that the allegations leading to the charges arose from the dispute between Mr Joseph and the defendants over the “sharing formula” of the proceeds of the contract.
He noted that Mr Joseph, with various petitions he wrote to various authorities, was only bent on punishing the defendants by his “false allegations.”
Citing section 323 of the Administration of Criminal Justice Act (ACJA), 2015, the judge ordered Mr Joseph to pay N20million compensation to the defendants for allegedly causing their being charged with the alleged offences without justification.
‘Mr Joseph refused to testify’
According to the judge, one major reason the charge of falsification of the bank resolution failed was that Mr Joseph, whose testimony as the person his signature was allegedly forged on the document, “blatantly” refused to appear to testify in court.
“The position of the law on the allegation of forgery is that the person whose signature is alleged to have been forged is an indispensable, vital and material witness and the prosecution’s case is fatal without his evidence,” he said.
The judge also disregarded Mr Joseph’s EFCC statement which was admitted as Exhibit 2 on the grounds of his failure to testify in court.
Curiously, the court did not reference the February 2, 2020 proceedings, when Mr Joseph wept in open court, informing the judge how the prosecution had tried to shut him out and pleaded that he be given an opportunity to state his case.
But despite the gaps left in the case by the prosecution, the judge did not censure the prosecuting counsel, Mr Obozua, but rather sympathised with him over “the frustration” he “passed through especially with the non-cooperation of the nominal complainant towards the prosecution of this case.”
For instance, Mr Senchi noted that aside Mr Joseph’s failure to testify in the case, the prosecuting counsel led evidence that was at variance with the allegation contained in the charge.
The judge said, “As I have said earlier, the charge against the defendant in Count 2 is that they made a false board resolution of Citadel Oracle Concept Limited December 14, 2012. Exhibit 12, the board resolution of Citadel Oracle Concept Limited which was admitted in the prosecution’s evidence through PW4 and which he (the prosecutor) led extensive evidence purporting to be forged is dated December 18, 2012.”
He noted that such evidence led by the prosecution “will naturally be at variance with the charges” and could not amount to the proof of the falsification of the document referred to in the charge.
The judge added, “Even if the evidence before this court shows that the defendants did indeed forge Exhibit 12, dated December 18 2012, they nevertheless cannot be convicted for forging the document dated December 14, 2012 for which allegation they have been charged.”
“On this plank alone, the first and second defendant ought not to be found guilty and be discharged and acquitted of the offence of forgery, using false document as genuine and criminal conspiracy,” Mr Senchi ruled.
‘Prosecution skipped to mention forged document in two counts’
In addition, the judge observed that while in counts 2 and 4, the charges specifically alleged that the defendants made false board resolution of Citadel Oracle, the prosecution failed to mention any specific document but only alleged that certain document was forged in counts 1 and 3.
While the account opening package used for the opening of the disputed Access Bank account was alleged not to be forensically genuine by EFCC’s forensic expert who testified as prosecution witness 4 (PW4), the judge said the allegation was not contained in any of the charges.
The judge said, “Although an account opening package was tendered through PW4, as Exhibit 13 to 13D, there is now where in Count 2 of the charge where the defendants were accused of opening account opening documents.
“There is a specific document the defendants were accused of forging in Count 2, and this is the board resolution of Citadel Oracle Concept Limited dated December 14, 2012.”
He added that in the absence of a specific document in counts 1 and 3 alleged to be forged, the defendants could not have been found guilty of the counts.
‘Gaps in testimony of EFCC’s forensic expert’
The judge added that there was also no sufficient proof, either by direct or circumstantial evidence, that the defendants made false board resolution of Citadel Oracle or forged the account opening document of the disputed Access Bank account.
He noted that the expert opinion of EFCC’s PW4 on both the alleged falsification of the board resolution of Citadel Oracle admitted as Exhibit 12 or the forgery of the account opening documents admitted as Exhibits 13 to 13D were not reliable.
The judge said PW4’s testimony was not only contradicted by the testimony of another forensic expert who testified as the second defence witness, the prosecution witness also failed to tell the court the source of the samples used for his comparison to arrive at his conclusions.
He also said the prosecution witness failed to name the person who forwarded the samples he used for his forensic analysis, and the prosecuting counsel also failed to call the persons as witnesses.
The judge said, “In the instant case, I have looked at the facts and the evidence before this court, there are two conflicting expert opinions, on the same issue of forgery of Exhibit 12.
“I have also considered the first defendant’s evidence, that it was the nominal complainant himself that handed over the allegedly forged document to her. She also explained the circumstances in which he gave her the document.”
‘Two of EFCC’s witnesses not relevant to prosecution’s case’
Mr Senchi also noted that only two of the prosecution witnesses (PW1 – EFCC investigator and PW4 – EFCC forensic expert) were relevant to the case of the prosecution.
The judge rather cited the evidence of the two other prosecution witnesses in support of the case of the defendants.
‘Discharged and acquitted’
The judge subsequently discharged and acquitted the defendants after resolving the only issue formulated for determination against the prosecution and in favour of the defendants.
He said, “I hold the view that the prosecution failed to establish the offence of criminal conspiracy punishable under section 97 of the Penal Code, forgery punishable under section 364 of the Penal Code, using as genuine forged document punishable under section 97 of Penal Code and fraudulently or dishonestly using as genuine the forged document punishable under 364 of the same act against the first and second defendant and I so hold.
“The sole issue of determination is resolved against the prosecution and in favour of the defendants.
“Accordingly the first and second defendants are hereby discharged and acquitted of the four-count charge filed against them by the prosecution.”
Nominal complainant’s lawyer reacts
Reacting to the judgment, Mr Joseph’s lawyer, Bob James, described the order awarding N20million against his client as strange.
Mr James said, “It is strange that an award could be awarded against a person without hearing the person.
“To the best of my knowledge, it has never happened before in our country that such an excessive amount of N20million is awarded against a nominal complainant because he reported a case to the authorities.
“We are taking steps to get the order set aside.”
Ms Kama and Mr Igbokwe, who is the chief executive of two Port Harcourt-based IT companies, Ad’mas Digital Technologies Limited and Pirovics Engineering Services Limited, were arraigned by the EFCC on October 24, 2018.
Mr Joseph had alleged that they connived with some top officials of Zinox Group, including the Company Secretary/Legal Adviser, Zinox Group and TD, Chris Ozims, to hijack the contract awarded to Mr Joseph’s company.
Another director of TD, Folashade Oyebode, and two staff members of Access Bank Plc, Obilo Onuoha and Deborah Ijeabu, were also accused of aiding the alleged crime.
The petitioner alleged that the trio facilitated the release to them confidential bank documents belonging to his company, which they allegedly used in opening a bank account at Access Bank for the transfer of the proceeds of the crime.
The names of the accountant at TD then, Chares Adigwe, who was said to have filled in the account opening forms at Access Bank, and the Managing Director of Zinox Group, who is also Leo Stand Ekeh’s wife, Chioma, featured in Mr Joseph’s petition as playing roles in the alleged scheme.
But only Ms Kama and Mr Igbokwe were charged by the EFCC.
Ms Kama, had, however, told the court in her defence that she deployed her personal finances, experience and contacts to help Mr Joseph to secure and execute the contract but later betrayed her trust.
Support PREMIUM TIMES' journalism of integrity and credibility
Good journalism costs a lot of money. Yet only good journalism can ensure the possibility of a good society, an accountable democracy, and a transparent government.
For continued free access to the best investigative journalism in the country we ask you to consider making a modest support to this noble endeavour.
By contributing to PREMIUM TIMES, you are helping to sustain a journalism of relevance and ensuring it remains free and available to all.
TEXT AD: To advertise here . Call Willie +2347088095401...